Category - Property Division

I see it time after time. To save divorce attorney’s fees, people go down several different paths: They pay a nominal sum of money to a commercial divorce center in exchange for a packet of forms; go to the Clerk of the Chancery Division-Family Part for divorce forms; cobble together self-drawn marital settlement agreements from internet sites; or acquire generic forms from family and friends. Actually, it is surprising how much the layperson gets right from these various sources. The problem that arises, however, is the critical nature of those several things which are omitted or poorly worded. Child custody and child support are fertile areas for mistakes in agreements drafted by laypersons. The distinctions between “legal” custody and “physical/residential” custody are often not understood and, therefore, not correctly phrased in the agreements. Parenting time is not sufficiently specific. For example, pickup and dropoff arrangements are not clarified, and extended summer parenting time and holiday visitation are either left out or imprecisely phrased.

Lack of understanding of the New Jersey Child Support Guidelines by divorce litigants often leaves them uncertain as to how much money per week should be paid for child support resulting in too little or too much being paid. Also, failure to have child support paid via wage execution through the County Probation Department Enforcement Division is not included in the agreement. The child support recipient often does not know the process to implement the wage execution.

As far as real estate division is concerned, the quitclaim deed/mortgage refinance issue is usually mishandled.

Regarding spousal support, it is not uncommon for the amount of the weekly alimony and the length of the alimony term to be inconsistent with the statutory guidelines and conventions employed by the courts and divorce attorneys.

As well, division of retirement assets is often never accomplished since laypersons generally do not understand the contributory retirement plan “rollover” process and the necessity for Qualified Domestic Relations Orders (QDROS) for defined benefit plans (pensions).

To correct the above mistakes, indeed, if that can be accomplished at all, may wind up costing more than if an attorney had been retained to handle the divorce in the first place.

The procedural remedy in New Jersey is a post-judgment motion to attempt to correct the deficiencies in the marital settlement agreement. Sometimes this is successful and sometimes not. There are two competing legal doctrines: one, basic contract law; and two, recognition that the Chancery Division-Family Part is a court of equity which seeks to provide justice to all parties. On the one hand, in interpreting a contractual provision, the goal is to ascertain the intention of the parties to the contract based on the language used, taken as an entirety. Some judges take the position that the court will not excuse performance of the agreement as written because the court is not obligated to make a better contract for the parties than they saw fit to make for themselves. The court may also rule that subsequent events which should have been foreseen by the parties when they entered into the martial settlement agreement will not make the contract unenforceable as written. See Schwartzman v. Schwartzman, 248 N.J. Super. 273, 278 (App. Div. 1991), and Schiff v. Schiff, 116 N.J. Super. 546, 561 (App. Div. 1971), certif.denied 60 N.J. 139 (1972).

On the other hand, there is a legal doctrine in New Jersey by which the law grants particular leniency to agreements made in the domestic arena, and likewise allows judges greater discretion when interpreting such agreements. The rationale of the New Jersey courts is that although marital agreements are contractual in nature, contract principles do not have as great a place in the law of domestic relations as in other areas of the law. Lepis v. Lepis, 83 N.J. 139, 148 (1980); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992); Konzelman v. Konzelman, 158 N.J. 185, 194 (1999).

Chancery Division-Family Part judges, when confronted with a post-judgment motion to amend, interpret or clarify the marital settlement agreement, have a substantial degree of discretion. Only in the most extreme circumstances, such as if there is a plain misreading of the law by the Chancery Division judge, will an appellate court reverse the trial judge.

So, if you choose to represent yourself in a divorce, beware of the legal and procedural obstacles that lay ahead.